On Friday, March 13th, U.S. District Judge Lewis A. Kaplan of the Southern District of New York addressed the Widener Law community and participants in the 21st annual Ruby R. Vale Interschool Corporate Moot Court Competition
as the 2009 Distinguished Scholar. His speech, titled “Corporate Criminal Responsibility”, touched on the inherent imbalance in favor of prosecutors that occurs in corporate criminal cases.
Vice Dean Patrick Kelly
welcomed everyone to the Ruby Vale Moot Courtroom, singling out the competitors from the 24 teams as well as the competition judges, including Delaware Supreme Court Justices Jack B. Jacobs
and Carolyn Berger. He also introduced Lawrence A. Hamermesh
, the Ruby R. Vale professor of corporate and business law and director of the school’s Institute of Delaware Corporate & Business Law.
Introducing Judge Kaplan, Professor Hamermesh said, “I know him as an extremely intelligent lawyer, and an extremely principled individual,” adding, “It’s a great privilege – a truly great privilege – to introduce Judge Lewis Kaplan.”
After thanking Professor Hamermesh for the gracious introduction, Kaplan called Delaware “the wellspring of corporate law” and said, “I always found litigating in Delaware to be an exhilarating experience.” He singled out both Delaware’s judges and the Delaware Bar for praise before focusing on the topic of corporate criminal responsibility.
Left to right: Professor Hamermesh, Judge Kaplan, Sylvia K. Siegel, and
Margaret Serrano, the Ruby R Vale Moot Court Competition Chairperson.
Noting that the power of the prosecution is increased in corporate criminal cases because the mere act of such an indictment is damaging to a corporation, Judge Kaplan stated, “Defense of a federal criminal charge is frequently not an option.” The leverage given to the prosecution as a result creates a difficult imbalance. He cited examples such as the Adelphia Cable scandal, in which he felt that the prosecution used such leverage to force the company to pay a much larger settlement than the crime warranted. He also noted that the supposed deterrent effect of such prosecutions did nothing to stem the problems that led to the current situation on Wall Street.
Following his lecture, Judge Kaplan took questions from the audience, including questions about further clarification of deterrence and what might be possible solutions to the imbalance of prosecutorial power in such cases. When asked where, when, and how reform might come in the current environment, he answered, “It’s a little like standing under Niagara Falls trying to get the water to go back up.”
Judge Kaplan graduated from the University of Rochester and earned his J.D. from Harvard Law School. He clerked for the Hon. Edward McEntee of the U.S Court of Appeals, First Circuit spent over twenty years in private practice in New York before his nomination to the bench in 1994.